With candidates trading barbs in one of the most contentious midterm elections in recent history, one group that's remained out of the fray have been headlining musicians.
Musician versus politician has been a general feature of most election years. Bruce Springsteen famously complained about Ronald Reagan's use of "Born in the U.S.A." and artists such as John Mellencamp, Green Day and Jackson Browne have all waged public battles with campaigns using their work without authorization.
But despite record ad spending this time around, copyright attorneys who police use of their clients' work say after a busy primary season, 2010 general election campaigning was surprisingly devoid of problems. And they cite musicians' wins in previous high-profile dustups as the likely reason.
"Every time a politician gets slapped down on this, it's hugely embarrassing," said copyright attorney Howard King, whose firm has represented several artists in spats with politicians, including one in the primaries between musician Joe Walsh and an Illinois congressional candidate of the same name.
The rocker complained about candidate Walsh's campaign re-recording his song "Walk Away" with new lyrics and the dispute was eventually resolved without a lawsuit. A similar flap occurred in a U.S. Senate primary race in California when Republican candidate Chuck DeVore's campaign re-recorded a pair of Don Henley songs to lampoon President Barack Obama and House Speaker Nancy Pelosi.
Broadcast and online ads are the main areas where artists can sue, since the public use of songs is licensed by music clearinghouses. But sometimes, campaigns buy performance rights to play songs — as in the cases of Springsteen, Mellencamp and Green Day — and don't have to directly seek the permission of the musicians. So in these instances, the artists generally can't sue; they can only complain.
Other times, the artists have not allowed licensing of their music for advertising purposes, so they can sue on that basis. And in cases where music is altered and re-recorded by a campaign, copyright-infringement suits can also be filed.
Internet advertising can be especially contentious.
"They (the campaigns) see a big difference between ads on television and ads on the internet," said Lawrence Iser, a copyright attorney who has sued campaigns on behalf of Browne and former Talking Heads frontman David Byrne. He said campaigns are often staffed with "young people who grew up in a Napster world," referring to file-sharing service that sparked widespread music piracy a decade ago.
Fights over re-recorded music in ads often begin with a cease-and-desist letter and a notice to YouTube — where many of the ads reside — alleging copyright infringement. In the DeVore case, the candidate tried to argue his campaign songs didn't infringe on copyrights because they mocked Henley, a federal judge disagreed and said they were political satire, not a constitutionally protected parody of the original songs.
Iser said he was surprised that there hadn't been more instances in this year's general election of popular music ending up in political ads without permission, but said he thought high-profile cases were making campaigns think twice before using music, no matter how catchy the chorus or how much it might score political points.
"It's had the desired effect, and it's very satisfying," said Isera partner at the Los Angeles-based entertainment litigation firm, Kinsella Weitzman Iser Kump & Aldisert.
Browne's lawsuit against 2008 Republican presidential nominee John McCain over use of the song "Running on Empty" in an ad resulted in an apology from the party and a pledge to get artists' permission in the future.
Still, the 2010 primary season produced lawsuits likely to reverberate into future election years.
In August, DeVore apologized to artists Don Henley, Mike Campbell and Danny Kortchmar for re-recording two songs, "The Boys of Summer" and "All She Wants To Do Is Dance" during his bid for the Republican nomination in California's Senate race. The apology and settlement came after a Los Angeles federal court ruled DeVore's versions of the songs infringed on the musicians' copyrights.
King said he keeps a copy of the DeVore ruling handy for the next time he needs to send a candidate a cease-and-desist letter.
Florida Gov. Charlie Crist's use of the Talking Heads' "Road to Nowhere" in an Internet ad for his Senate primary campaign prompted Byrne to sue in May.
Crist has denied intentionally infringing on Byrne's copyrights and his attorneys have said in court filings that they believed the company that produced the ad had obtained the proper license. The case won't be decided until well after Tuesday's election.
Indeed, the legal fights often outlast the campaigns, as in the McCain, DeVore and Crist lawsuits.
"I think most campaigns want to focus on getting the votes, they don't want to focus on getting into copyright fights," said Ben Sheffner, a copyright attorney who writes a blog called "Campaign and Copyrights."
He said campaigns seemed to have gotten the message about getting permission before putting music in ads. "Most of the mainstream political consultants are well aware of these issues," Sheffner said.
Although Republican candidates are often on the receiving ends of musician complaints and lawsuits, King and Iser said the conflict isn't about political ideology.
Sheffner said he didn't think either party was necessarily better on campaign copyright issues, but that liberal musicians may look the other way if a Democratic candidate uses their songs. Or they may embrace its use, performing campaign-friendly music as Fleetwood Mac did during Bill Clinton's 1992 presidential campaign or Springsteen did for Obama in 2008.
Both Browne and Byrne sued because they had refused to license their music for advertising purposes, despite being offered seven figure deals, Iser said.
"They want to write songs to move people and to do their art and they want to sell it for somebody to advertise to sell soap or toothpaste or cars or political candidates," he said. "And you've got to respect that."
For the general election season that closes Tuesday, it would appear campaigns did just that.
But come 2012, King and Iser both anticipate again having to deal with candidates who can't resist using a familiar musical riff to send a political message. "They can't stand not using a good song," King said.